Oct 4, 201812:47 PMLaw at Work
with Jessica M. Kramer and Ashlie B. Johnson
Anti-harassment policies and why your business should have one
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Today’s societal climate may help remind employers that they must be cognizant of the impact that claims of sexual or other types of harassment can have on their business and reputations. In order to protect their businesses, employers should review their handbook and the harassment policies and procedures that they are currently enforcing. Employers should also implement a process for monitoring legislative changes, as it is likely that new laws and standards around harassment will be implemented in the near future. Engaging with an attorney or HR professional can help busy business owners stay confident in their compliance.
Several states have legislation requiring employers to implement anti-harassment policies and hold regular sexual harassment trainings. According to SHRM, “Currently, California and Connecticut require businesses with 50 or more employees to provide sexual harassment training to supervisors. Businesses with 15 or more employees in Maine must provide training to all workers at the start of their employment. In other states, such as Massachusetts, Rhode Island, and Vermont, employers are encouraged, but not required, to provide training.” In Wisconsin, there are no specific sexual harassment training requirements. However, I recommend sexual harassment training for your Wisconsin employees if you meet any of the following criteria:
- You have employees working in states other than Wisconsin;
- You are an educational institution that must meet Title IX training requirements;
- You have had problems with harassment occurring within your organization in the past; and
- You wish to mitigate the potential for future liability for any harassment that may occur or allegations that may arise.
When reviewing harassment policies, there are several items that an employer should consider. The most important is to remember that the types of harassment that can lead to liability extend beyond conduct that is sexual in nature. According to the Equal Employment Opportunity Commission (EEOC), there are two types of sexual harassment claims: “quid pro quo” and “hostile work environment.” The EEOC provides guidance on defining harassment and establishing liability that can be helpful for employers.
Although the EEOC can provide great information and guidance, employers should be cautious of using the legal terminology and definitions that these documents contain. If your policy language isn’t easily understandable or doesn’t provide context, it may be deemed inadequate. When developing anti-harassment policy language, it is important to focus on and clearly state what prohibited behaviors look like.
For harassment to be illegal, it must be “severe and pervasive.” In developing anti-harassment policies, the goal should be to stop and correct these behaviors before they rise to that level. For employees to understand what is expected of them, I recommend that employers include language such as “the following behaviors are unacceptable and therefore prohibited, even if not unlawful in and of themselves.” This helps to clarify that even if a certain behavior isn’t actually illegal, it is still prohibited by your organization. Employers should also include language that explains that prohibited harassment goes beyond the strictly sexual. Harassment can occur in many forms and circumstances. Here are just a few examples:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.
- Harassment can be based on any number of different factors including disability, sexual orientation, appearance, pregnancy, etc.